Life After Dukes v. Wal-Mart: The Tough Road Ahead For The Costco Women’s Suit

In the wake of last week’s U.S. Supreme Court ruling in Dukes v. Wal-Mart which concluded that the 1.5 million female workers who claimed to have been discriminated by Wal-Mart did not qualify as a class action, another class action suit may soon experience the chilling effect of this controversial decision. In 2004, a group of female employees of Costco sued their employer, accusing the largest U.S. warehouse-club chain of limiting promotions of female employees to assistant general manager and general managers by failing to post such job openings. The plaintiffs, led by attorney Brad Seligman, were successful in obtaining class certification in 2007. Costco subsequently appealed that order and the matter was ultimately stayed pending the outcome of Dukes v. Wal-Mart.

The article, reported in Bloomberg, captures the thoughts and impressions of legal pundits who forecast the fate of the Costco suit following the Dukes decision. While a few commentators in the article argue that the facts, circumstances, and legal theories advanced in Costco are similar to what transpired in Dukes, attorney Brad Seligman disagrees. Seligman explains that the Costco case is a “much narrower case” and that unlike the 1.5 million class members in Dukes, the class size in Costco is less than 1,000 women for purposes of assessing and managing the damages aspect for the women class members. Another glaring distinction that Seligman points out is that the adverse employment decisions were made at Costco headquarters, above the individual store level – a fatal fact that the majority relied on in rendering its decision in Dukes by concluding that the managerial discretion exercised at each individual store did not equate to a company-wide policy of discrimination.

In any event, as one commentator noted, “One thing is for sure: all cases alleging employer bias and seeking class certification will be affected by the Wal-Mart decision.” Let’s just hope that doesn’t happen to the Costco plaintiffs. The article can be found here.

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